Sunday, February 12, 2012

The Contraception Imbroglio and Conscientious Objections

By Mike Dorf

What is the cause of the political imbroglio over President Obama's decision (and then re-evaluation) regarding the obligation of Catholic-affiliated institutions to provide health insurance covering contraception? Surely one explanation lies in the peculiar compromise that is the American employment-based health insurance system.

If our system were designed along wholly free-market lines, then health care and health insurance would be purchased in a private market from private funds. Under such circumstances, an employee of a Catholic hospital would be free to spend some fraction of her take-home pay to purchase birth control pills or to pay a premium for a health insurance policy that covers birth control pills, just as she would be free to spend some fraction of her take-home pay making other purchases that the Catholic Church regards as immoral--contributing to pro-death-penalty candidates, for example.

At the other end, if we had a system of public health insurance in which the government either provided health care (as in the UK) or paid mostly private health care providers (as in France), then employers also would not be involved in the delivery of health care, and so would have no occasion to complain that they were being dragooned into participating in the provision of a good or service that they regard as immoral. Accordingly, the current mess largely arises out of the peculiar, path-dependent compromise of employer-based health insurance.

That observation does not lessen the force (whatever it is) of the objection voiced by the Catholic bishops and (to a lesser extent) other Catholic institutions. The truth is we do have employer-based health insurance and so they are being required to participate in activity they regard as immoral.

But I wonder whether the force of the objection is at all diminished by the positions that we could expect the Catholic Church to take in the hypothetical world in which we had a different method for providing health insurance. A great many Catholics favored extending health insurance to the uninsured during the debate over the bill that became the Patient Protection and Affordable Care Act. But religious Catholics also objected to having insurance listed on the new exchanges cover abortion and to a lesser extent, contraception. More broadly, the Church's position is not simply that contraception and abortion are wrong for Catholics; the Church position is that they are wrong for everyone, and insofar as it can build political coalitions with other socially conservative actors, is willing to use the power of the state to enforce that view on others. As Rick Santorum's statements show, the view on contraception is an outlier, whereas the view on abortion is more mainstream. But the important point is that the Church probably would impose its views on everybody if it could.

There's nothing inherently wrong with that. If one thought that the Church's views about contraception were correct, then one would probably welcome it into a political coalition. There was nothing wrong, and everything right, about the way that religious opposition to slavery was a crucial factor in ending slavery.

However, in thinking about claims for conscientious objection, it may be useful to keep in mind whether the claimant is asking for a right to be different on the ground that everyone should be able to be pursue his, her or its own path, or whether the claimant really wants to control everyone else and is simply asking for an accommodation as a decidedly second-best option. Keeping that distinction in mind, it's hard to think about these claims without placing some substantial weight on the merits of the position. An objection to funding contraception thus looks much less compelling than an objection to funding slavery, say. Whether one ought to try to bracket one's views about the underlying objection presents an important question that I'll simply notice for now.

In this context, it's possible to view the religion clauses as a continuum across free exercise and establishment, I think -- with three main markers:

1. Where the government does nothing, staying out of the way.

2. Where the government acts reasonably to protect free exercise.

3. Where the government carves out exceptions that give religious believers special privileges not offered to others.

(1) and (2) are pretty clearly on the free exercise side of the spectrum, but (3) runs the risk of becoming Establishment, though it's dressed up in the clothing of FE.

(1) speaks for itself, as it really just invokes pure limited government. The line between (2) and (3) is the real trouble spot. A good example of (2) might be a law that allows churches to use public facilities for private use (on par with everybody else).

But the current contraception issue seems to at least potentially fall within (3). Assuming Congress has authority in the first place via the commerce clause to reach religiously-affiliated institutions like hospitals and schools, what should we make of conscience objections? On the surface, it sounds good -- after all, we're showing respect for religious preference.

But if a law is generally applicable, aren't such carve-outs actually a form of special treatment, which morphs into establishment of religion? In other words, it can be argued that the government is elevating Catholicism over everything else; the religion's stature is *augmented* by *state* action.

Further, suppose a faith-affiliated business opposes paying taxes on religious grounds. Or maybe a hospital refuses to meet certain safety regulations because of orthodox views. Are we denying religious liberty by upholding laws that require compliance? And if people want to say those issues are different (maybe they are), who decides what is and isn't a valid religious objection? Do we really want the government (including the courts) entangled in that question?

I guess what I'm saying is that the Employment v Smith rule might be the cleanest mindset.

The NY Court of Appeals five years ago upheld the requirement to provide contraceptive coverage to Catholic institutions. The state free exercise protection was applied even to generally applicable laws, but intermediate scrutiny was applied.

One complicating factor, and a NYT article recently on Fordham U touches upon it, is that religious colleges and so forth might be the most convenient service available. The rape victim taken to a Catholic hospital and not given Plan B also is cited.

If women students at some fairly isolated university is not provided contraceptives or some other service at thier clinic, it can be a real burden.

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But the current contraception issue seems to at least potentially fall within (3). Assuming Congress has authority in the first place via the commerce clause to reach religiously-affiliated institutions like hospitals and schools, what should we make of conscience objections? On the surface, it sounds good -- after all, we're showing respect for religious preference.www.buywindows7keys.comWindows 7 professional KeyWindows 7 professional activation Key

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